There are situations in which scholars disagree about whether the "framers' intent" is the proper way to understand a constitutional concept, but this is not one of them. As an excellent congressional analysis from the Watergate era explains, there is no question that "high crimes and misdemeanors" in the impeachment context was not meant to be co-extensive with the criminal meanings of those words.

Of particular interest is that the framers all seemed to view the phrase as unambiguous, and they treated it as a term of art to reflect its origins in British law. There was briefly an effort by George Mason to use the word "maladministration," but James Madison objected to that word for being too vague. Mason then substituted "high crimes and misdemeanors agst. the State" to expand impeachment beyond the two delineated offenses of treason and bribery, and his proposal was adopted.

Trump need not, therefore, have committed treason or have been directly bribed in order to be impeachable. And such further grounds for impeachment are not limited only to actions for which criminal indictment is immediately appropriate. Trump, like all presidents, must not "subvert the Constitution," in Mason's words.

I think this is basically right. (See this article from the Clinton era by Gary McDowell, "High Crimes and Misdemeanors": Recovering the Intentions of the Founders, mainly making a different point but very supportive of the idea that "misdemeanors" means not "minor crimes" but "malfeasances in office.") [Aside: whether President Trump has actually committed impeachment-level malfeasances in office is a different question and Professor Buchanan does not seem very persuasive to me on this point.]

My main point to highlight here is: Professor Buchanan, who I'm sure is not an originalist, thinks (a) that the original meaning of the impeachment clause is clear; and (b) that we should care about the clear original meaning of the impeachment clause in thinking about what the impeachment clause means today.

I say this not to suggest that Professor Buchanan is being hypocritical, but to suggest that he is being entirely conventional. It is extremely common in legal argument, including in particular among liberal law professors, to make originalist arguments when they support the conclusion one wants to reach (and to not make originalist argument when they don't). That in turn suggests that the difference between originalists and conventional liberal legal scholars is that the former think originalist arguments should control all or most of the time, while conventional legal scholars think that they should control some of the time. (See also my comments on a similar impeachment-related argument by non-originalist Noah Feldman (Harvard)).

This point holds, though, only when particular constitutional clauses are being debated. When the debate is about originalism as a theoretical matter, the critique of originalism is pitched as much more dramatic. Using the Constitution's original meaning to guide modern adjudication, it is said, is theoretically incoherent, practically impossible, morally indefensible, or (at best) an approach that can only be undertaken by trained historians. (These arguments were made so often in the context of Justice Gorsuch's confirmation hearings that I won't both with citations; they are surely familiar to everyone at this point).

But the argument that originalism cannot be a guide to modern interpretation is belied by the fact that conventional liberal legal scholars such as Buchanan and Feldman routinely and unapologetically use originalism to find the meaning of particular constitutional clauses. Those who argue the impossibility of originalism are not quarreling only with originalists; they are quarreling with convention liberal legal argumentation.

05/30/2017

Mike Ramsey recently asked: "Does Congress still have the authority to regulate immigration under the define and punish power even though the act being punished is no longer a violation of international law?" Yes, it does.

[T]he law of nations (wherever any question arises which is properly the object of its jurisdiction) is here [in England] adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world.

So, the "law of nations" in the Constitution ought to be treated similarly to the words "common law" which appear twice in the Constitution, both times in the Seventh Amendment, in the sense that they have a permanent meaning referring to the old English law background upon which the Constitution was written. Under the Seventh Amendment, reference must be had to exact or analogous material in "the English common law when the amendment was adopted" (Baltimore and Carolina Line v. Redman, 295 U.S. 654 (1935)). The power to enforce new treaties is available to Congress to some degree without recourse to the Define and Punish Clause, and the framers distinguished treaties from the law of nations; according to a law review article last year by William Moon, "the First Congress conceptualized 'treaties' (i.e., conventional law of nations) as separate from and not included in 'the law of nations'."

Some might argue that we should forget about the English law background, and let modern treatises and modern judicial decisions expand "the law of nations" to which the Constitution refers, and thus expand the power of Congress. But the idea that such an expansion of power could be accomplished without any legislation and without any constitutional amendment is foreign to the structure of the Constitution, which limits legislative power to Congress itself, and provides a finite list of legitimate ways to amend the powers delegated to Congress. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court seems to have read the Define and Punish Clause to include "the present-day law of nations" which is a mistake, as is the statement by Professor Ilya Somin that the Define and Punish Clause "does not give Congress the power to forbid anything that might have been banned by the law of nations at some time in the past, but merely that which actually is illegal under it today." The "law of nations," as that term is used in the Constitution, is not part of the "supreme law of the land" like federal statutes per the Supremacy Clause; rather, the law of nations was a known but somewhat vague quantity in 1789, and it would have made little sense to let Congress remove only the vagueness of the law of nations while allowing democratically unaccountable actors the much greater power to contract, enlarge, or completely rewrite it.

MICHAEL RAMSEY ADDS: Rob Natelson makes a similar point by email:

I doubt that congressional power under the Constitution shifts every time there is a change in international law standards, any more than than the composition of a "jury" in the Seventh Amendment shifts because some states decide to create civil juries of six with non-unanimous decision making.

Or, here's perhaps an even more modern and chilling example:

Deep environmentalists convince the "international community" to adopt a new international norm to save the planet: Every nation will be required to adopt and enforce on its people a zero population growth plan; a nation's population growth in excess of zero (with adjustments perhaps) will be considered aggression against other nations.

Substantive due process issues aside, would that, under the Define and Punish Clause, give Congress the power to legislate a "one child" policy for Americans?

Obviously, some constitutional powers have to be construed as connected to outside developments---shipment by railroads, for example, is "commerce" although railroads didn't exist (outside of mines) in 1789. But I think there is a problem in altering the scope of enumerated powers based on policy decisions by outside governments---as in the state jury and population growth examples---who could thereby jigger our constitutional system in otherwise extra-constitutional ways.

Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every “person” within a state’s jurisdiction. Nor does the text require equal treatment or equal rights; it requires equality only in the “protection of the laws.” Yet the Supreme Court assumes that the Equal Protection Clause is implicated whenever a state treats people differently—without pausing to ask whether the state has withheld the equal “protection of the laws.” And the Court has created a textually unsupportable distinction between racial discrimination, which it subjects to “strict scrutiny,” and other discriminatory practices that receive “rational basis review.”

Yet textualism has been enjoying a resurgence in both constitutional and statutory interpretation. This resurgence raises two questions for the Court’s equality doctrines. The first is whether those who embrace textualism must reject the Court’s equality jurisprudence as textually illegitimate. The second is whether those who embrace the Supreme Court’s landmark equality pronouncements must reject textualism as incompatible with those rulings. The answer to both questions is no. Almost all of the Supreme Court’s canonical racial-equality decisions have a firm textual foundation in congressional civil rights legislation—a fact that the Supreme Court has all but ignored by insisting on grounding its equality pronouncements exclusively in the Equal Protection Clause. And Congress enacted most of these civil rights statutes before the Supreme Court invoked the Equal Protection Clause to declare a discriminatory practice unconstitutional. So these civil rights statutes can and should be used to supply textual support for the Court’s decisions and doctrines, especially in cases where the Equal Protection Clause and other constitutional provisions are textually ill suited for the task.

A lengthy, interesting and challenging article that is somewhat undersold by the abstract. For example, here is the discussion of Plessy v. Ferguson (extensive footnotes omitted):

Plessy v. Ferguson is regarded as one of the great antiprecedents in Supreme Court history—and deservedly so. The Court’s reasoning was shoddy, its efforts to pooh-pooh the stigmatizing effects of racial segregation seem shockingly naive to modern readers, and the concept of “separate but equal” was thoroughly discredited in the school-segregation cases. Today no one attempts to defend Plessy, and the ruling is universally regarded as abhorrent from the standpoint of morality and justice. But most constitutional theories have a difficult time explaining why Plessy was wrong as a matter of law.

Common law constitutionalism, for example, has attempted to justify the Court’s evolution from Plessy to Brown by relying on post-Plessy precedents that showed how “separate but equal” was unworkable. But that does not explain why Plessy was wrong on the day it was decided. There was no body of precedent at the time of Plessy that had undercut the “separate but equal” idea. And the overwhelming majority of pre-Plessy court decisions had upheld school segregation and antimiscegenation laws. The Plessy Court relied heavily on these pro-segregation precedents, and it distinguished Strauder and Yick Wo v. Hopkins as cases involving racial exclusions rather than racial separation. Plessy was very much a precedent-based decision that employed common law reasoning—and the precedent existing at the time seemed to support what the Court did.

Legalistic theories of constitutional interpretation also struggle to explain why Plessy was wrong. Originalists must confront a mountain of evidence that the Fourteenth Amendment was not originally understood to prohibit racial segregation. And it is hard to get a self-executing prohibition on racial segregation out of the Amendment’s text. One could plausibly argue that a state would violate the Equal Protection Clause if it allowed railroads to exclude blacks, because the common law requires common carriers to serve all comers on reasonable and nondiscriminatory terms, and a state that withholds this common law protection from blacks while extending it to whites is failing to enforce this common law protection in an evenhanded fashion. But it is harder to make out an equal protection claim when a state requires its railroads to accept blacks and whites but seat them in separate coaches. One can grant that segregated coaches are stigmatizing and inherently unequal—but how does that deny the equal protection of the laws? The Louisiana Separate Car Act purported to protect blacks and whites equally, by protecting all passengers from having members of other races sit in their coach. Absent evidence that Louisiana was selectively enforcing its segregation statute, it is hard to accuse the state of withholding legal “protections” in a discriminatory manner.

The reason Plessy was legally wrong—rather than just a missed opportunity for the Supreme Court to impose its vision of a better society—is that the Civil Rights Act of 1875 preempted the Louisiana Separate Car Act. The Civil Rights Act commanded that persons in the United States

shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

And the statute imposed civil and criminal liability on those who

deny[] to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial.

The Louisiana statute required what this federal statute forbade. It compelled railway companies to “provide equal but separate accommodations for the white, and colored races.” But telling black passengers that they cannot sit in coaches reserved for white passengers is not “full and equal enjoyment” of the railroad’s accommodations. And a law that instructs white passengers to sit in one coach and black passengers in another is not a condition or limitation “applicable alike to citizens of every race and color.”

Of course, the Civil Rights Cases had declared these federal statutory provisions unconstitutional, holding that Congress cannot regulate private sector discrimination under the Fourteenth Amendment unless the discrimination is “sanctioned in some way by the State” or “done under State authority.” But that holding was inapplicable to the situation in Plessy, where the plaintiff had challenged a state law that mandated racial segregation on railway carriages. Louisiana’s Separate Car Act was undoubtedly state action, and it was governed by the Civil Rights Act of 1875—even after the Civil Rights Cases had immunized purely private discrimination from congressional enforcement legislation.

The Plessy Court acted as though the Civil Rights Cases had wiped these federal statutes off the books, as if the Supreme Court wields a writ of erasure that blots out unconstitutional legislation. The Supreme Court has no such power. Judicial review means only that the Court may decline to enforce a federal statute in a particular case—if (and only if) the Court concludes that enforcing the statute would conflict with its paramount duty to obey the Constitution. But federal statutes that the Supreme Court has declared “unconstitutional” remain laws until Congress repeals them, and the Court must enforce those laws when it can do so consistent with the Constitution. The Civil Rights Act of 1875 remained valid and enforceable as applied to state action—and it preempted Louisiana’s segregation statute.

Finally, the Citizenship Clause is what authorized Congress to preempt the Louisiana Separate Car Act. Relying on the Equal Protection Clause to support the Civil Rights Act of 1875 is a tough sell for two reasons. First, Louisiana’s law purported to impose equal burdens on white and black passengers, and there is no evidence that Louisiana was enforcing its law in an inconsistent or selective manner. Second, the seating arrangements in railroad cars do not involve discriminatory protection of the state’s laws. The problem with legally mandated racial segregation is not that it withholds legal “protections” from railroad passengers, but that it marks racial minorities as second-class citizens unworthy to sit or associate with whites. The Citizenship Clause authorizes Congress to preempt caste legislation of that sort—and Congress did exactly that in the Civil Rights Act of 1875.

To be clear, this is not to say that originalism as a serious academic inquiry is impossible. But originalists -- besides largely ignoring the political valence of the theory as practiced and the conservative/libertarian intellectual support structure -- seem reluctant to engage with historians' and political scientists' critiques of originalism. After years of being buffeted by academic historians, the linguistic turn was developed by Solum in order to avoid these critiques (though it is not clear that all originalists share Solum’s enthusiasm for this approach). Corpus linguistics, as used by originalists, appears to be another way to avoid historical critique at the same invoking the prestige of "big data" and putative rigorous empiricism -- all the while ignoring the fundamental problem with originalism: the probable existence of multiple "original public meanings."

The unproductive response to this evidence is to dismiss originalism as political hackery. It is not that. (Another irony in all this: historians and political scientists have taken originalism far more seriously as an idea than many liberal legal scholars). Originalism is better understood as providing the constitutional vocabulary for movement conservatism much the same way legal realism provided intellectual support for New Deal-era legal liberalism. But that also means originalism is inescapably part of the political terrain. However, originalists are now setting forth the intellectual architecture to claim that originalism is something like a replicable social science complete with a methodology. Thus -- and this has long been its implicit claim -- originalism is objective and any other theoretical construct is, by definition, constitutionally deviant. This is a bold, even audacious, claim. But it is one that needs to be debated and dissected rather than flippantly dismissed. Originalism has shown itself to be a powerful idea worthy of respect as a theory/movement. Originalists, at the same time, might do better to avoid the apolitical pretense that marks so much of the scholarship (and even the claims of more politicized actors like Levin). The final irony is this: originalism cannot achieve its desired hegemony unless and until its advocates engage with its critics rather than continually moving the proverbial goal posts. There still seems to be precious little evidence of that.

What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?

The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term "person"? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.

Before addressing his argument, I should make clear I agree with Professor Somin on several key issues about the Constitution and immigration. I agree that the original meaning of the Commerce Clause does not include a general power to restrict immigration, and that the Naturalization Clause probably does not, either. In company with him, I reject the claim that the federal government possesses extra-constitutional inherent sovereign authority—because that claim is starkly inconsistent with the ratification-era debates, the structure of the Constitution, and the text of the Tenth Amendment.

Where we differ is about whether the power to “define and punish Offences against the Law of Nations” includes authority to restrict immigration.

...

The law of nations held, as a general principle, that nations should not harm each other. Hence, it provided that nations must refrain from unauthorized incursions into other nations’ territory. To violate international law, the unauthorized entry need not be led by a foreign government. As the Founders’ favorite international law scholar, Emer de Vattel observed, “Private persons, who are members of one nation . . . may injure a foreign sovereign.” Immigration statutes implemented the “no unauthorized entry” norm against “private persons” from other countries.

Here's an originalist conundrum: Suppose Professor Natelson is right that at the time of the framing the define and punish clause would have permitted Congress to comprehensively regulate immigration because unlawful immigration was a violation of the law of nations. And further suppose (although he does not argue this) that the framers specifically designed the Constitution this way to give Congress a comprehensive power over immigration, which they thought Congress should have. But also suppose Professor Somin is right that unlawful immigration is no longer a violation of the law of nations (today's customary international law) because changes in the customary understanding of international law that no longer place any duty on foreign citizens or sovereigns to refrain from or prevent such immigration.

Does Congress still have the authority to regulate immigration under the define and punish power even though the act being punished is no longer a violation of international law?

(On further reflection, I continue to prefer my suggestion that the President has power to prevent entry of peaceful migrants as part of the executive power over foreign affairs, just as the President has power to prevent entry of hostile invaders as part of the power to repel attacks; and Congress has power to regulate in the area as part of its power to make regulations necessary and proper to carry into execution the powers vested by the Constitution in other branches.)

05/26/2017

In contrast to the conventional view [that the filibuster is the key problem], approaching the Senate from the perspective of what the Framers of the Constitution intended it to do suggests that the institution is dysfunctional not only because partisans produce gridlock. The dysfunction also comes from the fact that the Senate no longer performs its deliberative role very well. Reasoned deliberation has nearly disappeared in the institution, as decision-making has gradually migrated from committee hearings and action on the floor of the Senate to informal and ad hoc meetings of interested members—meetings typically held under the auspices of the party leadership, out of public view and behind closed doors.

This leadership-led way of proceeding is problematic given that the institution’s architects shared broadly in the belief that they were creating a deliberative institution, one explicitly designed to limit the power of popular and transitory majorities as reflected in the House of Representatives. Indeed, a deliberative Senate was key to making the new government work.

And further:

To provide such a check [on majoritarianism], the Senate would have to differ significantly from the House in both its composition and the way in which it conducted its proceedings. Charles Pinckney observed during the debate over ratification in South Carolina that “the purpose of establishing different houses of legislation was to introduce the influence of different interests and principles.” In Federalist 62, Madison explicitly connected the Senate’s ability to perform its checking function to the extent to which it differed from the House, writing that

as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance.

This illustrates the two distinct roles that the Framers charged the Senate with performing: passing legislation along with the House—but simultaneously checking popular opinion as expressed in the House by promoting thoughtful deliberation in the writing of the laws. This sentiment is reflected in the convention and ratification debates on bicameralism, as well as the Senate’s method of selection, size, nature of representation, and term length.

As regular readers know, I hold what Professor Wallner calls the conventional view, that the filibuster is a problem. I agree with all he says about the framers' design for the Senate, and I agree that in theory one might expect the filibuster to promote deliberation (by giving the minority a stronger position). But in fact it does not work that way, under current conditions: the minority (whether Republicans or Democrats) would prefer that nothing be accomplished -- and indeed the majority may prefer that as well. I think there would be more deliberation without the filibuster. It might be chiefly deliberation within the majority. But the majority would have an incentive to deliberate, because what it decided upon might actually pass (instead of being filibustered).

Consider, for example, the current situation of health care reform, passed quickly in the House but now the subject of deliberation within the Senate majority precisely because it is operating under a procedure where the filibuster won't apply. If the minority could filibuster, the majority could afford to be much less careful.

In an article that was just published in the Duke Law Journal, I explained why that’s wrong—that is, why a federal statute’s novelty is not an indication that the statute is unconstitutional, and why it shouldn’t be treated as one. The CFPB’s structure is established by statute, so a decision holding the CFPB’s structure unconstitutional amounts to holding unconstitutional the part of the statute that establishes the CFPB’s structure.

The novel feature of the CFPB that Litman discusses was described by the DC Circuit as follows:

[N]o independent agency exercising substantial executive authority has ever been headed by a single power. * * * Until now.

Litman's post discusses various possible rationales for the proposition that the novelty of a statute is a reason to consider the statute unconstitutional. One of these rationales has a strong connection to originalism. This is the "thus far but no farther" rationale for treating novel or unprecedented departures from original meaning differently than departures that are supported by longstanding precedent the reversal of which is simply impracticable.

And in conclusion:

As should now be apparent, Litman fundamentally misunderstands the "thus far but no farther" version of the novelty argument. Litman is right, there is no "magic" about novelty. Novelty is important because it allows us to draw a line between violations of the original meaning that must be tolerated (at least in the short to medium run) for pragmatic reason and constitutional violations that can be redressed without creating enormous disruption.

It is entirely understandable that Litman would make this mistake. Like most constitutional scholars (who reject originalism), Litman takes the Dynamic New Deal Settlement for granted. Given this constitutional gestalt, novelty has no constitutional significance. Indeed, the very idea of the Dynamic New Deal Settlement is that novel practices should be accommodated by adjustments in constitutional doctrine. The alternative constitutional gestalt rejects this assumption. The understanding expressed by Frozen New Deal Settlement is precisely that novelty is crucially important if and only if the novel assertion of government power is inconsistent with the original meaning of the constitutional text. "Thus far but no farther" represents an originalist second best--a rule that aims preserves the constitutional status quo. The normative justification for adhering to the second best is based on the normative case for originalism itself--a topic I have addressed in The Constraint Principle: Original Meaning and Constitutional Practice.

(See also this article [by me] that suggests something like the "thus far but no further" idea as a way of dealing with nonoriginalist precedent).

The law of nations argument is creative. But it ultimately fares no better than more conventional rationales for a general federal power over immigration.

Eighteenth century understandings of the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit. But the fact that international law recognized the exclusion of aliens as a power of sovereign states does not mean that a violation of a national law restricting migration is thereby a violation of the law of nations. Blackstone and the other eighteenth century writers cited by Natelson make the former claim, but not the latter.

And from later in the post:

A slightly different variant of the law of nations argument is that the Define and Punish Clause gives Congress the power to forbid any acts that a foreign nation has an international law obligation to prevent, such as the use of its territory to launch attacks against a neighbor. [Editor's note: in my view, this is a power that the clause grants. Typically, with the exception of piracy, this is how eighteenth century commentators understood individual violations of the law of nations.] But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them. For example, no serious commentator contends that Mexico’s failure to prevent migration by its citizens to the United States is a breach of its international law obligations, even if the migrants violate US immigration law.

On December 6, 1984, then-Judge Robert Bork gave a speech to the American Enterprise Institute (AEI) calling on conservatives to combat the theory emanating from the (liberal) legal academy. “Now we need theory,” Bork stated, “theory that relates the framers’ values to today’s world . . . It is necessary to establish the proposition that the framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”

This seems curious in light of the fact that originalists, in telling their own intellectual history, point to Robert Bork's 1971 Indiana Law Journal article as proto-originalism and Rauol Berger's 1977 Government by Judiciary as the theoretical point of congealment around original intent orignalism, the pre-cursor to original public meaning originalism. If indeed constitutional conservatives had homed in on Berger, original intent, and originalism, why would Bork be calling for more "theory" on this very point seven years after Berger's book was published?

This answer is straightforward but has been overlooked: constitutional conservatives did not immediately congeal around Berger's formulation and begin to call themselves “originalists.” In addition to the anachronism of imputing labels and motives to historical actors they would have not have recognized or accepted, it is also another data point that political scientists, historians, and legal academics have ceded this important terrain to originalists. Furthermore, it is also a small window into how ideas gain traction. In short, while Berger's book was important, digging a bit deeper shows that original intent originalism was not inevitable, but one of a few existing narrative frames for constitutional conservatives before 1985 (and perhaps even after).

For his previous post, see here (and commentary by co-blogger Chris Green here).